Republic v Joseph Maina Matundura [2015] KEHC 1943 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 106 OF 2013

REPUBLIC ………………………………………….……………...PROSECUTOR

VERSUS

JOSEPH MAINA MATUNDURA………..…….………………………ACCUSED

SENTENCE

The accused person herein JOSEPH MAINA MATUNDURA, was initially charged with the offence of Murder contrary to Section203 as read withSection 204 of the Penal Code.

By a plea bargain agreement entered into on the 16th July 2015 between the accused person and the State, the said charge was reduced to Manslaughter contrary to Section 202as read withSection 205 of the Penal Code.

The particulars of the charge were that on 8th October 2013 at Bogita Sub-location in Kisii South District within Kisii County in the Republic of Kenya unlawfully caused the death of FREDRICK OMBUI MATUNDURA.

The accused person pleaded guilty to the said charge and was consequently convicted on his own plea of guilty.

The facts leading to the commission of the offence pleaded to were that on 8th October 2013, the deceased had an argument with his elder brother, who is the father of the accused herein. The deceased went to his brother’s house while armed with a panga. The brother raised an alarm thereby prompting the accused to come to his father’s rescue by throwing a stone at the deceased which stone ended up injuring the deceased fatally.

A post mortem examination conducted on the body of the deceased determined the cause of death as cardio-pulmonary arrest due to severe head injury secondary to assault.

In mitigation, Mr. Bigogo, counsel for the accused submitted that the accused was remorseful and had not planned to kill the deceased but only acted in the heat of the moment in a bid to rescue his father who had been attacked by the deceased who had already cut him on the left hand.  According to Mr. Bigogo, the accused used reasonable force to disarm the deceased and save his father. The accused was ready to reconcile with his family members and pleaded for a non-custodial sentence.

The Probation Officer’s pre-sentence and victim assessment impact report filed on 23rd September 2015 stated that the accused was a first offender who was remorseful for his actions and was willing to reconcile with his family members. The report was also categorical that the accused’s family had forgiven him and were ready to accept him back as he posed no security threat to them. The report also showed that there were no hostilities between the accused’s family and the family of the deceased.

I have taken into account the circumstances surrounding the offence and the fact that the accused acted the way he did in bid to save the life of his father. I note that the offence was precipitated by the actions of the deceased who chose to attack the accused’s father in his own house. I also note that the 2 year period that the accused has been in custody is adequate punishment and lesson to him to keep away from crime.

Accordingly, I hereby sentence the accused person herein JOSEPH MAINA MATUNDURA to one (1) year non-custodial sentence during which he will be supervised by the Probation Officer of his area.

It is so ordered.

Signed, Datedand Delivered in open court this 26th day of October, 2015.

HON. W. A. OKWANY

JUDGE

In the Presence of:

Mr. Boiyon for State

Mr. Bigogo for Accused

Omuga: court clerk